Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/03702/2015
IA/04592/2015, IA/03669/2015
IA/04598/2015, IA/04597/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19 September 2016
On 13 October 2016

Before

UPPER TRIBUNAL JUDGE O'CONNOR

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

[E O]
[R A]
[P A]
[J F A]
[J A]
(ANONYMITY DIRECTION NOT MADE)
Respondents

Representation:
For the Appellant: Mr I Jarvis, Senior Presenting Officer
For the Respondents: Mr S Nwaekwu, Moorehouse Solicitors

DECISION AND REASONS
(Decision delivered at the hearing of 19 September 2016)
1. The appellant before the Upper Tribunal is the Secretary of State for the Home Department. I shall refer herein to the abovenamed respondents as 'the claimants'. The first claimant is the mother of the second to fifth claimants.
2. By way of a decision of 14 January 2015 the Secretary of State refused to grant each of the claimants leave to remain in the United Kingdom. There is no dispute that on the same date the Secretary of State set directions for each of the claimants' removal, pursuant to Section 47 of the Immigration, Asylum and Nationality Act 2006. It is also of relevance that each of the claimants were granted discretionary leave to remain from 21 June 2011 until 20 June 2014.
3. The claimants appealed to the First-tier Tribunal. The appeal came before First-tier Tribunal Judge Cockrill on 8 March 2016 and each was allowed on "human rights grounds (Article 8)" in a decision promulgated on 24 March 2016. Permission to appeal to the Upper Tribunal was subsequently granted by First-tier Tribunal Judge Grant-Hutchison on 17 August 2016 and thus the matter came before me.
4. At the hearing before the Upper Tribunal there was agreement between the parties that the First-tier Tribunal's decision contained an error of law requiring it to be set aside and that the appeal should be reemitted back to the First-tier Tribunal to be reconsidered on a de novo basis. I concur with the views of the parties in this regard.
5. It is readily apparent from reading the First-tier Tribunal's decision that it approached the consideration of the Article 8 claim on a legally unsustainable basis. That this is so is highlighted by the following passages in the decision :
"32. ... What appears to be the case therefore, is that there is an assessment that is to be carried out by the decision maker as to whether the appellants' continue to qualify for further leave on the same basis as their original discretionary leave was granted. ...
...
34. ... It seems to me that, therefore, the family unit is still a close one and the circumstances have not fundamentally altered. it seems to me therefore, that each of these appellants really ought to have been granted the period of further discretionary leave that is set out in that guidance."
6. It is clear from these passages, and even clearer from reading the FtT's decision as a whole, that the FtT undertook its considering of the claimants' Article 8 ground on the basis that if their circumstances had not changed since the grant of leave in 2011 then they ought to be successful in their appeal. This though is fundamentally flawed because even if the circumstances of the claimants had not themselves changed since 2011, the legal landscape against which Article 8 claims must be considered has substantially changed since that time; in particular the intervening period saw the introduction of new Immigration Rules (2012) dealing directly with private and family life. These Rules now set out with some clarity the SSHD's view of the public interest in Article 8 cases. In short, even if the claimants' circumstances had not changed since 2011 this cannot be seen as being determinative of their current Article 8 claim.
7. For this reason the First-tier Tribunal's decision is flawed by a legal error capable of affecting the outcome of the appeal. Given the degree of fact finding which is necessary to re-make the decision, it is appropriate that the appeal be remitted. I observe when doing so, that the FtT will now also be reqired to engage with the application of section 117B(6) of the 2002 Act.
Decision
The First-tier Tribunal's decision contains an error of law capable of affecting the outcome of the appeal and it is set aside.
The remaking of the decision will be undertaken by the First-tier Tribunal on a de novo basis.

Signed:

Upper Tribunal Judge O'Connor